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Ahwang v Torres Strait Island Regional Council

Unreported Citation:

[2021] QSC 147

EDITOR'S NOTE

This case concerned an application for judicial review of a decision by the Torres Strait Island Regional Council to grant a 99 year lease over land on the island of Moa. Justice Henry found that the Torres Strait Islander Land Act 1991 outlined a procedure which had to be followed for decisions of this kind, and that the Council had failed to follow that procedure. This was because the Council had made a decision based on popular opinion, instead of a properly informed, merit based decision, as required by statute.

Henry J

21 June 2021

Background

In 2019 the Torres Strait Island Regional Council (“Council”) decided to grant a 99 year lease of a residential property to Mr Pilot. [1]. The land was held by Council on trust for the benefit of the “Islander inhabitants” of Moa Island. [2]. Before the decision was made, the applicant, Mr Ahwang, had also expressed his interest to Council in receiving such a lease. [3]. He was aggrieved by the Council’s decision, and sought review of the decision under the Judicial Review Act 1991. [5]. For reasons explained below, his application for review was successful. [81].

The application was made 7 months out of time, but Henry J accepted that – in addition to “significant challenges” in gathering evidence (including because of the COVID-19 pandemic) – the application was so meritorious that this was a “proper case” in which to grant an extension of time. [7]–[9].

The statutory construction issue

Justice Henry accepted that the Council’s decision to lease the land was made under the Torres Strait Islander Land Act 1991 (“the Act”). [12], [29]. Section 85 of the Act provides that the “trustee of the Torres Strait Islander land may grant a lease … over all or a part of the land for not more than 99 years”. [12]. Section 135 provides that, “if this Act provides that the trustee of Torres Strait Islander land is required to make a decision about the land” (emphasis added), then it must have regard to certain matters, including any decision-making process agreed on by the Torres Strait Islanders for whom the trustee holds the land, or any “Island custom”. [13]. In the event there is no such agreed process or Island custom, then the trustee must “make the decision under a process … agreed to and adopted by the trustee for … decisions of that kind”. [13].

Council argued that s 135 did not apply in the circumstances, because it had not been “required” as trustee to make a decision about the land (i.e. whether to grant the lease; instead, s 85 simply provided that the Council “may” make such a decision). However, Henry J concluded that the correct interpretation was that s 135 applied “when a decision which falls to be made about land is a decision which it is for the trustee to make”. [25], [27]. There were “powerful contextual indications” that the word “required” in this provision related “not to the need for a decision to be made but to the need for the trustee to be the entity which makes it”. [25]. Accordingly, “Council’s decision-making process had to comply with s 135”. [29].

Whether the procedure in s 135 of the Act had been complied with

The applicant made two complaints about the process followed by the Council. First, he contended that the Council had failed to comply with s 135 of the Act because it had made no enquiry as to whether there was a decision-making process which had been agreed on by the Torres Strait Islanders for whom the land was held on trust, or as to whether any relevant Island custom existed for such decisions. Second, he contended that the Council had not followed a “decision-making process” of the kind required by s 135(2)(b) of the Act. [49].

Justice Henry rejected the first complaint. A difficulty confronting this submission was that uncontradicted evidence indicated that there “was no pre-existing Islander decision-making process or custom” of the kind referred to in s 135. [51]. Although the applicant submitted that the divisional councillor for the relevant area, Mr Levi, had a “duty to inquire as to the existence of a relevant decision making process or custom”, Mr Levi had been a long-standing resident of the area and it was “not inherently implausible that his knowledge as to the existence or otherwise of the relevant process or custom was soundly based”. [51], [52]. There was no evidence to suggest that his state of knowledge “was so poor that he could not have been properly informed without making inquiry”. [56].

However, Henry J considered that the second complaint was made out. The essence of this complaint was that the decision actually made by Council had “turned upon popular opinion without properly informed consideration of the underlying merit of the proposed decision”. [58]. Namely, Council had conducted a ballot of persons who attended a community meeting, and seemingly acted on the results without any further consideration. [40], [44]–[45]. This was insufficient because (at [59]):

“Section 135 requires decision making by a trustee burdened with the duty of holding the land in trust for the benefit of Islander inhabitants. It is implicit in that context that the decision making process called for by s 135(2)(b) is a process allowing the trustee to make a decision which is sufficiently informed as to its merits to be a decision which is for the benefit of Islander inhabitants, that is to say, in the interests of the Islander inhabitants generally.”

In summary, the Council’s decision had been based solely on “popular support”, but this was “inadequate to the task of reaching a properly informed, merit based decision” as contemplated by s 135(2)(b) of the Act. [63]–[64]. Accordingly, the Council’s decision to grant the lease to Mr Pilot was set aside, and the two expressions of interest for a lease (including the applicant’s) were referred back to the Council for consideration afresh. [66].

W Isdale

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